Decision 1996M – Omnitrans

Union did not establish retaliation based upon termination of employee two days after participating in negotiations. Pursuant to the terms of the parties’ MOU, the employer took the action based upon the employee having incurred ten charged absences in 12 months. The 10th incident occurred when the employee failed to provide 24-hour notice of request for union business leave, as required by established past practice and contract.

Employer retaliated against employee by disciplining him on the same day he participated in union negotiations. By attempting to enforce a superseded and more onerous 48-hour notice requirement for union leave, rather than 24 hours as provided in the current contract and practices, the employer treated the employee in a disparate manner from all other similarly situated employees, and deviated from past practices. Together, this conduct established unlawful motivation.

Employer did not depart from past practice when it required employee to give 24 hours advance notice of request for time off to conduct union business, whether such leave was covered by the contract or not, but did depart from practice when it disciplined another employee for failure to provide 48 hours notice, where current policy and practice required only 24-hour notice. Evidence established that parties had a longstanding past practice of requiring 24-hour notice. Contract provisions did not alter past practice requiring notice.

Timing of dismissal of employee two days after participating in negotiations, without more, did not establish unlawful motive, where employer took action based upon employee’s failure to submit request for union business leave 24 hours in advance, as required by contract and parties’ past practices. Discipline of employee on the same day he participated in contract negotiations, coupled with disparate treatment and employer’s deviation from past practices concerning notice requirement for union leave, established unlawful motivation.

Employer would have disciplined employee for failing to comply with requirement that he submit a request for union business leave 24 hours before taking leave, regardless of his participation in union activity.

Employer did not change past practice or violate the contract when it directed that union paid leave under the contract must only be used for union business related to the employer, not other employers. There is no evidence in the record that either party intended to use the broad definition of “union activities” under statutes providing against retaliation as their definition of “union activities” for purposes of excused absences from work. Past practice and contract did not establish that employer had ever knowingly granted time off for union activities unrelated to employer.